Commencement of the limitation period for a claim to a compulsory share in the event of a mistake regarding the invalidity of the will
A Mistake regarding the invalidity of the will may result in the Limitation period within the meaning of Section 195 of the German Civil Code (BGB) does not begin.
In its judgement of 2 March 2023, the Higher Regional Court of Hamm (Ref.: I-10 U 108/21) ruled that the requisite knowledge of the prejudicial testamentary disposition may be lacking if the beneficiary, as a result of an error of fact or law, assumes that the disposition of which he is aware is invalid and therefore has no prejudicial effect on him.
The judgment is based on the following facts:
The claimant is the testator’s only child from his first, divorced marriage. The testator died in 2015. Following his death, the parties disputed claims to a statutory share and a supplementary statutory share. The testator was married to the defendant in his second marriage. On 2 June 2003 and 13 April 2007, the deceased drew up wills in which he appointed the claimant, his only son, as his sole heir. On 11 February 2009, the deceased drew up a Will, in which he expressly revoked his previous wills and appointed the defendant, his second wife, as his sole heir.
The claimant was informed by the defendant of the testator’s death immediately after the testator’s death. On 4 August 2015, the claimant learnt of the last will and testament.
On 7 June 2016, the claimant submitted an application for a certificate of inheritance designating him as the sole heir. He was of the opinion that the new will dated 11 February 2009 was invalid due to his father’s progressive dementia and the resulting incapacity to make a will. On 4 September 2017, the defendant also applied for a certificate of inheritance designating her as the sole heir, on the grounds that she had become the sole heir under the will dated 11 February 2009. The Local Court considered the facts required to substantiate the defendant’s application to have been established. It regarded the facts described by the claimant as insufficient to establish that the testator was incapable of making a will.
The claimant lodged an appeal against this, which the Local Court dismissed. The Higher Regional Court of Hamm then obtained a written expert opinion on the question of testamentary capacity as part of the appeal proceedings. This did not confirm the alleged lack of testamentary capacity. Consequently, the claimant withdrew his appeal and demanded that the defendant provide information regarding the estate and pay the resulting statutory share.
On 28 December 2019, he then brought his claim by way of a staged action Claims to a compulsory share in court. The defendant raised the defence of the limitation period and invoked a right of retention against the claimant.
The Regional Court had dismissed the claim, stating that it was unfounded as the claim in question was time-barred. In accordance with Section 195 of the German Civil Code (BGB) All claims to a compulsory share become time-barred after three years. In accordance with Under Section 199(1) of the German Civil Code (BGB), the time limit begins at the end of the year, by the the entitlement has arisen and the creditor of the Circumstances giving rise to a claim and the identity of the debtor Gained knowledge or would have to be achieved without gross negligence. In this case, this refers to the opening of the succession and the notarised will disinheriting him in favour of the defendant. The three-year period is said to have commenced at the end of 2015, following notification of the opening of the succession.
The claimant lodged an appeal. He took the view that the Regional Court had wrongly dismissed the claim. It had incorrectly assumed that the claimant had been aware of his right to a compulsory share in 2015. Until the probate proceedings have been concluded and as for the appeals procedure, he had just no certain knowledge of all the factual requirements had. He was, on the basis of the his father’s severe dementia by on the assumption that the last will and testament was invalid. He explained that it was not until 25 August 2019, upon receipt of the expert’s report, that he was able to ascertain that it could not be established with certainty that the testator lacked testamentary capacity. The time limit therefore began to run at the end of 2019. The defendant argued that knowledge of the father’s death and of the will dated 11 February 2009 had triggered the limitation period in 2015. The claimant should have assumed that the father was, in principle, capable of making a will.
The Higher Regional Court of Hamm has now handed down its ruling. The appeal has been upheld because the conditions for the Right to a compulsory share under Section 2303(1), first sentence, of the German Civil Code (BGB) are present. It is undisputed that, as a descendant of the testator, the claimant is entitled to a compulsory share pursuant to Section 2303 of the German Civil Code (BGB). The defendant became the sole heir by virtue of the will dated 11 February 2009. The Higher Regional Court further states that the claim to the compulsory portion is not time-barred. The claimant became aware of the testator’s death and the will dated 11 February 2009 in 2015. Nevertheless, the three-year limitation period did not expire on 31 December 2018. The claimant did not became aware of the validity of the will through the expert report. Awareness of the detrimental A decision presupposes, that the Heirs entitled to a compulsory share: the key points the has recognised the order as prejudicial. If the Justified by an error of fact or law is subject to this order, this may be missing. This applies, if there are concerns about effectiveness cannot be dismissed out of hand. The fact that the Higher Regional Court commissioned an expert report shows that there were legitimate doubts as to the testator’s capacity to make a will. It is only once these doubts have been dispelled that one may assume knowledge of the invalid disposition and the commencement of the limitation period. In this case, this was only the case shortly before the claims to the compulsory share were asserted. Consequently, these claims were not time-barred.
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